Shan Workers Petition Supreme Court of Thailand to Overturn Discriminatory and Illegal SSO Policy Denying Migrant Access to Work Accident Compensation Funds

On 20 October 2009, Nang Noom Mae Seng, a disabled migrant work accident victim, and two other Shan migrants petitioned the Supreme Court of Thailand to overturn a Social Security Office’s (SSO) circular (RS 0711/W751, issued on 25th October 2001) they claim discriminates against over 2 million migrant workers in Thailand. 

The circular has negative implications especially for those migrants from Burma working in dangerous and risky workplaces where they frequently experience accidents. As a result of this SSO circular, migrant work accident victims are denied access to work accident compensation from the Workmen’s Compensation Fund (WCF). The three workers from Burma claim the circular is illegal, in breach of the Thai Constitution’s non-discrimination provisions and have therefore requested the Supreme Court to affirm their right to access the WCF.

On the 21st September 2009, Region 5 Labour Court threw out this case on the basis Nang Noom’s case has, since August 2008, been pending consideration in the Supreme Court and she cannot prosecute a second case. Additionally, the court ruled the other two migrants involved in the case had no authority to petition the court.

Somchai Homlaor, HRDF’s Secretary General, today said: “The important issue in this petition, which contrasts from Nang Noom’s existing case pending in the Supreme Court, is that in this case Nang Noom is requesting the Supreme Court to overturn the SSO’s discriminatory and illegal circular notice, and not as in the previous case, that the WCF directly pay her work accident compensation.”

In relation to Region 5 Labour Court’s ruling that the two additional migrant workers have no authority to prosecute this case, Somchai adds: “This case addresses a very important gap in the Thai justice system which requires filling. Previously, these two workers, along with Nang Noom, requested the Administrative Courts to overturn the SSO’s circular notice, as ‘persons negatively affected by or potentially disadvantaged by’ the circular. However, the Chiangmai Administrative Court and then the Supreme Administrative Court threw out the case, on the basis it was the Labour Courts who should consider their case.”

Somchai concludes: “The decision of the Supreme Court in this case will set a precedent on the Thai justice systems ability to investigate legality of administrative actions (judicial review) such as the SSO’s circular notice, and decide whether such measures are discriminatory and illegal or not. The spirit of the WCF is that it is a fund to provide secure compensation for work accident victims following work accidents, so that migrant workers do not have to rely on their employers. Employers must, according to law, pay dividends into the fund to cover their workers. The complainants in this case are migrant workers, but the WCF was established to protect all workers, without reference to nationality or immigration status. The three plaintiffs in this case are migrants who have all legally registered to work in Thailand and whose information is in the government’s system. The SSO circular notice is therefore, without doubt, discriminatory.”

The refusal of the SSO to allow Burmese migrant access to the SSO’s WCF remains under consideration of the International Labour Organisation (ILO) and the UN Special Rapportuer on the Human Rights of Migrants.

*The Human Rights and Development Foundation (HRDF) is a registered foundation working to strengthen standards on human rights, democracy and peace in Thailand.